The Undemocratic Scramble Toward Same-Sex Marriage

Whatever the merits of the argument for same-sex marriage (and I think they are meager indeed, resulting from a simple misunderstanding of what marriage is and how necessary it is for living a good and full life), its advocates don’t think they can be appreciated at a popular level.

Hence the effort at every point to circumvent democratic procedures: to skirt referenda with legislative votes and legislative votes with judicial rulings. If gay marriage is ratified across the country, it will be elites whom we can thank or fault, not the American voter.

Writing in Public Discourse , Paul Linton gives a delicious sketch of how the determination of Illinois’ political class to bring about gay marriage has led to an undemocratic circus worthy of the Ringlings:

The lawsuits, which raise only state, not federal, constitutional claims, name a single defendant, David Orr, the Cook County Clerk . . . Mr. Orr, a longtime advocate of same-sex marriage, has announced his support for the plaintiffs’ lawsuits, has expressed his opinion that the failure to recognize same-sex relationships as marriages is unconstitutional, and has stated that he expects his counsel, Anita Alvarez, the State’s Attorney of Cook County, to support his position, which she has now done. She has filed an answer in each case admitting that the reservation of marriage to opposite-sex couples violates the equal protection guarantees of the Illinois Constitution.

In the meantime, Lisa Madigan, the Attorney General of Illinois (and daughter of Michael Madigan, the powerful Speaker of the Illinois House of Representatives), has filed petitions to intervene in both cases, not to defend the existing law, which one would normally expect the Attorney General to do when the constitutionality of a state statute is drawn into question, but to attack the law. At this point, there is no one in either case who is willing to defend the law. A lawsuit in which both sides support the same result is, to say the least, odd.

An uncharitable mind might be tempted to believe that these lawsuits are collusive, i.e ., that they were brought with the understanding (express or implied) that neither the defendant (Mr. Orr), nor his attorney (Ms. Alvarez), nor the Attorney General (Ms. Madigan) would defend the challenge . . .

One of the most odd results of this byzantine strategy is that it could result in gay marriage being legal only in Cook County and not in the rest of the state. It’s all of a piece with the rest of the movement toward gay marriage: twisted logic (marriage is whatever we say it is, and for the moment that is a union between any two people who have sex and love each other), twisted science (asserting that same-sex couples raise children as well, on average, as opposite-sex ones even when studies don’t agree), twisted judicial rulings (Vaughan Walker, enough said), and the distortion of democracy (Illinois, overturning Prop. 8, etc).

It’s a shame. There are real arguments to be had over marriage. Our current settlement—-no-fault divorce for opposite-sex couples (never mind the needs of the kids) but no marriage at all for same-sex ones—-is inconsistent and unsustainable.

The problem is that one side is determined to skirt the argument altogether in their rush to an undemocratic endzone. There are reasons for this, of course: if one thinks same-sex marriage is a human right, then it should not be subject to popular will.

But this belief, however entrenched in right-thinking circles, lacks a pedigree in our Constitution, laws, or religious traditions. It is not shared by the vast majority of Americans. An elite consensus is not a popular consensus, though it can become one. That’s why we need to deliberate—-calmly, openly, and democratically—-before embracing a social change all parties see as significant.